July 2018

Essays

Russell Marks

Child protection doesn’t always protect children

Transcript of proceedings from the Royal Commission into the Protection and Detention of Children in the Northern Territory, June 20, 2017.

When families in the Northern Territory need help, removing children isn’t necessarily the answer

The unyielding Darwin sun is already burning through the crisp morning air of the dry season as Kate*, a mother of nine in her early 40s, steps into the Northern Territory’s Supreme Court foyer at 9 o’clock. She’s been here before, four years earlier, to be sentenced for her role in a standover theft of a phone and cash. A lawyer delivered the plea for her that day. Today, June 20, 2017, she is here to tell her own story in front of the Royal Commission into the Protection and Detention of Children in the Northern Territory. They’d flown Kate from interstate, where she lives with three of her children. She was apprehensive. “I didn’t know whether they were going to let me speak for long,” she tells me later. “Whether they were going to believe me.”

Now, Kate wants her story written. It’s just difficult to know how to tell it. I’ve changed her name because of the legal requirement to protect her children’s identities. The sheer amount of trauma she and her children have experienced is enough to fill a book. There’s a small group of vicariously traumatised professionals around her urging her on. But the weight of it all is so heavy. It is palpable when she speaks.

How much of it do I write down? Do people really want to know?


Kate’s story begins in Hobart in the mid 1970s. Some of us are born to parents who nurture and protect us. Kate’s mother sexually abused her, and allowed men to do the same. When she was seven, she was made a ward of the state and found herself in the Kennerley Children’s Homes. She barely went to school, and didn’t learn to read. Frequently flogged by her “carer”, she lived with older boys and one worker who touched her. Unsurprisingly, she ran away.

“I got my friend’s dad to put me on a plane,” she says. By age 13 she was in Kings Cross and living rough. “I was intrigued about the Cross,” she says. “It was pretty mad back then.” This was 1988, the Bicentennial celebrations barely registering as her friends were being raped and overdosing around her. At this time Kate made the first of a series of extraordinary decisions that have defined her life. “I soon wised up that pretty bad things happen if you’re off your face,” she recalls. “So I stopped drinking and I stopped using. I had to protect myself.”

Kate eventually returned to Hobart and had three children by the time she met Fred in the mid ’90s. She then had four children with him. Two were conceived in rape. After each birth, she would beg the hospital for Implanon to prevent the next pregnancy; she says Fred would then dig it out from under the skin in her arm. Kate tried to leave him “dozens” of times. Shelters were often full. Once, she got herself and her kids to the airport, only to be told she was too heavily pregnant to fly. Then one night in 2008, Fred beat and kicked her for more than an hour, and smashed her head against a fish tank until he believed she was dead. She regained consciousness to find Fred throwing her children against walls. “I don’t know how I got us out of there,” she says, “but I did. His own father put us on a plane.” After some detours she ended up in Katherine, 300 kilometres south of Darwin. “I had to protect my children.”

It was now 2012. Her three eldest children had left home. Three of her boys – all Fred’s children – were diagnosed with ADHD and weren’t yet on medication. Kate was traumatised, depressed and panicking. She was also pregnant with her eighth child. She had no family and very few friends in the Northern Territory. “I knew I wasn’t coping,” she says.

She told the royal commission: “I found it hard because I knew there was something wrong with my boys, you know, my kids, and it was hard to parent them at the time.” Kate showed up at the women’s crisis centre in Katherine, needing someone to take the kids, just for a week or two. “Just so I could recharge my batteries.” Could anyone help?

The crisis centre helped Kate call the Department of Children and Families (DCF), which agreed to look after the three boys briefly. But then one of its caseworkers called the crisis centre’s executive officer and told her that DCF wanted the children for good.

“Kate was being protective of her children,” says Matt Fawkner, principal lawyer at the Katherine Womens Information and Legal Service, whom Kate later approached for help. “The danger is that the department sees a mother asking for help as a mother who doesn’t have capacity, and it applies to the court to keep the kids permanently.”

To Kate, that made no sense. She believed she was a good mother. “I’m no angel,” she says. “But I was nothing like my own mum.”

When DCF caseworkers came to the crisis centre to get them, it took an hour. “One of my sons lay on the road and said he wanted to be run over instead of being taken away.” During an arranged visit in the department’s offices the next day, Kate watched in horror as her four-year-old son sat limp in a beanbag, “like a vegetable, stoned out of his head on ADHD meds. I banged on the window to get them to call an ambulance. But they said I was being ‘disruptive’ and cut the visit short.”

That afternoon, DCF workers told her the boys had run away. She found them at the safe place she’d told them to go if Fred ever came to town. But then DCF told her to go to the police station. She did. Departmental cars followed her. “They boxed me into the car park,” Kate recalls. “And then they tried to tell police I’d stolen my kids.”

All three boys were soon in separate “placements” – either government- or church-run residential units, or foster homes – in Darwin, which meant they’d lost each other’s support. Kate could only visit them twice a month.

The eldest of the three, Paul, was 10 when he was taken. “They just kept saying, ‘Be good and you will go back to mum,’” he told the commission last year. How did he find out he wasn’t going home? “I found the 18-year [court] order laying around,” he said. “And I took it into my room and I read through it.”

Paul started staying at other houses. Nobody from DCF came looking for him. And nobody told Kate. Instead, DCF simply stopped her visits.

“I called every few days,” she said, “but they just gave me excuses. ‘You’re traumatising the boys.’ ‘The boys are too upset to see you.’ Eventually they just stopped returning my calls at all.”

Kate soon learnt that she had to take the department to court to get any information about her children. Then, when she did, the department would “hand me a packet with photos”, she told the commission.

A girl who had stayed with Kate for a little while (because her own parents had abused her), and who was roughly Paul’s age, made contact with him. Kate recalls that she eventually messaged her on Facebook: “You’ve gotta come get him.”

DCF insisted he’d only been gone for two weeks by then, but Paul says that he’d been mostly living rough – one or two nights at his placement in Darwin, the rest of the time wherever he wanted – for closer to six months.

Kate assumed that DCF, having told the court it could look after Paul better than she could, would do everything it could to find him. Its records, later subpoenaed by her lawyers, showed it knew exactly where he was, because staff at the YMCA – where he’d drop in every so often – would alert DCF every time they saw him. But the department did nothing when he refused to return to his placement. Kate asked her lawyer, Matt Fawkner, what she should do. “Definitely do not drive to Darwin and collect him,” Fawkner advised her. Kate drove to Darwin. “I found him,” she recalls. “He was living in a crack den, he was using ice, he had track marks all over his arms, and he was covered in infected cockroach bites from head to toe.” Paul was 12 years old.

Kate took him back to Katherine. But after two years living in “care” and on the streets, Paul was addicted, angry and impossible. Kate asked DCF to get him into rehab, but nothing happened. “It breaks my heart to this day but I had to make a choice,” she says now. She also had three of her younger children at home. Paul’s behaviour – he was withdrawing from a concoction of very heavy substances – was seriously affecting his 10-year-old sister, Rachel, and he was a danger to the others. He had to go back into state care.

“But they wanted to do it on his birthday,” Kate recalls incredulously. “I said, ‘Hang on, can he at least have his birthday with his mum?’ They were like ‘No, it doesn’t work like that.’ They came around literally on the morning of his birthday.”

With Paul back in the hands of DCF, Kate took Rachel and her two youngest children to Brisbane for three months. “We all just needed a holiday,” she says. Rachel settled down. But soon after they returned to Katherine, DCF came looking for her. The department took Rachel to Darwin, where Kate couldn’t visit her regularly. And six days after that, DCF made an extraordinary application: to retain full parental responsibility for Rachel until she turned 18.

Kate was desperate. She knew what “care” had done to her, and to Paul. Even when a case runs smoothly it might be eight months before it goes to a hearing. Meanwhile, Rachel was being shunted from placement to placement. Two months after going into care, Rachel opened a Facebook account. Inevitably, Fred found his daughter online. They began to communicate. When Kate discovered the account, she had her lawyers write to DCF to demand that Rachel’s carer close it. “The [DCF] worker could not see any reference to the child not being able to have contact with her father,” the departmental progress note says – though DCF had applied that same month to exclude Fred from court proceedings, due to “the danger the father poses to the mother”. Facebook’s own terms of service stipulate that its users be at least 13. (In the end, Rachel’s older sister was able to shut down the account.)

Eight months after Rachel went into “care”, the Katherine Local Court at last heard DCF’s application for her permanent “protection”. Rachel was on her third placement. She wanted to go home. DCF told the court that Kate was a bad parent. She allowed her children to wander the streets late at night. She didn’t feed them, they said. She didn’t clean the house. She failed to get them to school. She used illicit drugs. But DCF produced no evidence for these claims.

In her written judgement, Judge Sue Oliver noted that Kate “strongly denies” the drug-use allegation, adding that “I am satisfied on her evidence that this has not been and is not an issue”. In fact, Kate says she hadn’t used since Kings Cross.

Implied in any permanent protection application is an assertion that DCF can provide, long-term, the kind of care and stability for a child that her parents cannot. “So far the [department] has not demonstrated that ability,” wrote Judge Oliver. Rachel was allowed to return to her mother, badly damaged by the previous eight months in the system.

DCF told the court that Kate had originally told child-protection workers she didn’t want Rachel anymore. That wasn’t true either. So where had those allegations about Kate’s parenting failures come from? And why make them at all if DCF couldn’t substantiate them? “In a lot of cases – and definitely in Kate’s case – there’s not so much ‘evidence’ of abuse and neglect as there is suspicion, hearsay, whispers, rumours,” says lawyer Kate Lightfoot, also of the Katherine Womens Information and Legal Service, who helped Kate get her daughter back.

Kate thinks she knows where the rumours come from about her. “I’m really thin and back then I was missing most of my teeth,” she says. “Fred knocked them out one of the times he broke my jaw. The department thought I looked like an addict.”

Lightfoot agrees with Kate’s theory. “The bio on her file is that Kate is a drug addict. And it doesn’t seem to matter how often that allegation is knocked out of court; every new caseworker comes on board with the same assumption.” And there were forever new caseworkers. Turnover among child-protection staff in Katherine is notoriously high.

“Wow, he’s healthy,” one worker said about Kate’s newborn, “I thought he’d be malnourished.” “What’s your drug of choice?” asked another worker when she saw Kate’s missing teeth. And the kicker: “How can you hope to bring up your own kids when you grew up in care yourself?”

While she was fighting for Rachel’s return, Kate learnt to read. “She was sick of being bullied by DCF,” recalls Tammy, then a social worker with one of the many local support services Kate had voluntarily approached for help. “They were throwing things in her face, demanding she sign them.” So she approached one of the workers at the crisis centre, and they did night lessons for the better part of a year.

Kate also asked one of her counsellors to explain what the evidence says about how trauma affects the brain. “I wanted to know what was going on for my kids, and for me,” she says. “He explained it to me with maps on the board – parts of the brain, early child development stuff. Then I started to read books.”

With Rachel back home, Kate made another decision. “I knew that if I stayed in the NT they’d never leave us alone,” she says of DCF. “They’d keep going until they got Rachel, and then they’d want the little ones.” So Kate moved interstate with Rachel and her two youngest children. “I googled supports for [Rachel] in different places before we moved,” she remembers.

“It was the best thing she could have done,” says Tammy. “The way the department was behaving was like something you’d see in a DV relationship: it was abusive, and it was a misuse of power.”

Kate works now, helping women much like herself: those escaping violence, or fighting for their kids. She’s enrolled in higher education. Her second-youngest son is now in school, with a 100 per cent attendance rate. Rachel, now a teenager, doesn’t drink and doesn’t smoke. “There was one incident after we first moved here,” Kate recalls. “She smashed my TV. Police came out. I was waiting for the [child protection] notification. But police just asked to see her diagnoses, they saw she has a psych already, and they said, ‘That’s okay, we’ll just send the psych an email.’ I was blown away.”

Did DCF ever offer Kate any services to help her address the concerns (many of which were unsubstantiated) that it was relaying to the courts? “Never,” says Kate. “Nothing at all was available to me.”

It’s difficult to accept that a government department, its motto “Keeping Families Together”, would spend scarce resources trying to break Kate’s family apart. Paul is now frequently in children’s courts for serious criminal offending. Kate’s transformation since suggests that things might have been very different for Paul and his brothers had the appropriate supports come earlier.

The royal commission heard that, far from protecting Kate’s children when it removed them, DCF harmed them – or facilitated others to do so. “There are not many cases which are as clear-cut as hers,” says Matt Fawkner. So often when welfare takes children, the mother spirals out of control and it becomes a self-fulfilling prophecy. But Kate’s case is a clear example of what Fawkner calls “system abuse”.


There is a children’s novel by English author Michelle Magorian called Goodnight Mister Tom. Set during World War Two, it follows Willie Beech as he is evacuated from London to live with gruff old Tom Oakley in the fictional village of Little Weirwold. Willie’s mother beat him, starved him and chained him under the stairs. When Willie learns that Tom isn’t violent, he warms to him, and vice versa. Ultimately (spoiler alert), Willie’s mother commits suicide and Tom adopts him. Willie lives happily ever after.

Some real-life cases are like this. But Goodnight Mister Tom can be read as a child-protection fantasy. Children need to be yanked out of bad homes and saved. But stability in out-of-home care, for too many older kids at least, is a myth. Older kids especially get tossed around from placement to placement, as they break down because of traumatised children’s behaviours, homesick kids’ stubbornness, or abusive carers. In the real world, for too many kids, Little Weirwold just doesn’t exist.

What does exist is a whole lot of families who need some help – with addiction, with housing, with parenting strategies – but who rarely get enough of it.

In June, the federal assistant minister for children and families, David Gillespie, chaired a national meeting of state and territory ministers to urge them to consider adoption and “permanency” as an alternative to reunification. In fact, governments have been introducing permanency reforms for some time. They’re sold on the basis of outcomes for children, for whom bouncing back and forth between home and “care” is manifestly unhealthy, as if that’s the only source of instability. In practice, such reforms – lobbied for by foster-care groups and by child-protection departments themselves – make it easier for state and territory departments to remove kids for good. For instance, Victoria’s so-called permanency reforms did away with the requirement that the state help parents before it removes their children; the Andrews government restored that requirement after it was elected in 2014, but kept the bulk of the reforms curtailing the children’s court’s powers to oversee the Victorian department. Despite the royal commission, despite the litany of reports and inquiries into what happens to kids in “residential care” in all states, permanency is where the political energy is.

“In practice, permanency is a cheap bastardisation of trauma and attachment theory,” says one social worker in Katherine. It’s actually very expensive: the Productivity Commission found that New South Wales, for instance, spends more than $1 billion a year on out-of-home care, but barely a quarter of that on the kind of support services families need to stay together. An independent report into out-of-home care in New South Wales – at last released in June after the state government had kept it secret for 18 months – is scathing. The number of children in out-of-home care doubled over the past decade because too little is being done to keep families together. The only “winners” from this system are NGOs, which have found that providing “out-of-home care services” on behalf of outsourcing governments is increasingly lucrative. Despite the crisis-driven cost blowouts, the NSW report found no improvement in outcomes for removed children.

The same story is repeated all over the country. In November 2016, Four Corners exposed private operators – including former public servants – getting rich by providing substandard residential “care” for removed children. Empirical evidence shows that the permanent removal of a child from a parent does not guarantee a stable home for that child. In out-of-home “care”, despite the best intentions of most parties involved, children are regularly neglected, abused, drugged, assaulted, pimped out, raped and even killed. The Royal Commission into Institutional Responses to Child Sexual Abuse is replete with out-of-home “care” horror stories. Despite this, no child-protection authority needs to show a court that it’s able to provide better care for a child than his or her parents. Often it doesn’t even need to prove actual abuse or neglect; that can be inferred from a child’s behaviour.

It’s not the many, many post-removal abuses that generate mainstream outrage. It’s the “failures to act” in the first place – such as that in Tennant Creek in February, when a two-year-old girl was allegedly raped after 21 notifications had been made to Territory Families (what the DCF has been known as since 2016). The NT News campaigned for months on the lack of departmental action, finally forcing Prime Minister Malcolm Turnbull’s intervention in late June after the newspaper declared on its front page that he appeared uncaring. It’s uncontroversial that this girl needed saving from that environment. But what do we do in a situation where the saviour turns out to perpetuate the abuse – or, as in the case of Kate’s children and so many others, escalate it?

The Royal Commission into the Protection and Detention of Children in the Northern Territory handed down its final report in November last year. The spark for that commission was the images, broadcast on ABC’s Four Corners, of a hooded Dylan Voller strapped to a “restraint chair”. Voller remained the star of the commission, and it was his testimony – delivered with extraordinary gravitas on December 11, 2016 – that caught the nation’s attention more than any other commission event. But before the youth justice system abused him, Voller was a “client” of the child-protection system. It wasn’t part of the national story, but the commission looked into the Territory’s child-protection system as much as it did into the Don Dale Youth Detention Centre. And that makes sense. Almost every kid who ends up in court for criminal offending has a terrible story to tell about abuse, neglect or violence. These kids are victims well before they are offenders.

The Four Corners episode aired on July 25, 2016. Turnbull announced the royal commission the following day. There was a lot of anticipation about the commission among those working with young people in the Territory. It was noted approvingly that the new Territory Families minister, Dale Wakefield, had run a women’s shelter in Alice Springs for eight years. But some of the initial excitement has since dulled. The Northern Territory government’s royal commission implementation plan, released in April with the promise of a $229.6 million cash bonanza over five years, hasn’t quelled growing doubts that Territory Families’ toxic culture will ever transform in the current “permanency” climate.

Tina, a social worker in Katherine, emphasises the importance of statutory child-protection systems. “The problem is the actual responses. The potential for removal is the stick. But where’s the support? Why can’t we do both? We’re just removing. Where do we preserve, repair, heal?”

As both a lawyer and a journalist researching this story, I’ve spoken to too many professionals who say that the department seems to “pick on” a particularly vulnerable mother – one “who can’t fight back”, says one social worker – while it leaves her violent husband and indeed other more “difficult” families alone. And it is disturbingly common to find people with experiences of Territory Families – lawyers, social workers, “clients” – who say the department still gets “personal”.

Before Territory Families, DCF was itself a rebranding: it used to be the Department of Families and Children, which earned it a name people continue to use: “the Department of F’n’Cs”.

“A lot of our experience with [the department] is that it’s personality-driven,” says Matt Fawkner. “I had a case the other day. Two kids were removed. That wouldn’t have happened had the particular team leader not been on holidays. She admitted they stuffed up.”

People who have worked in the Northern Territory for a while have noticed some positive changes of late: workers who are more collaborative and willing to recognise parents’ strengths. Those who have arrived more recently see there’s a long way to go. “I’ve sat in meetings where child-protection caseworkers say to clients, ‘I don’t understand why you don’t like me,’” says Tina. “These are people who wield the power of the state. I’ve sat in meetings where caseworkers say things like, ‘The mother is aggressive and refuses to work with us.’ I ask, ‘Do you think that’s because you’re threatening to take her children?’

“I’ve sat in meetings where caseworkers tell Aboriginal women, ‘I know it’s hard for you people to understand what I’m saying.’ I’m continually gobsmacked. They’re forever in damage control, forever defensive, forever arse-covering. Meanwhile, they’re not protecting children and they’re not ‘strengthening families’.”

Instead of case-managing 25 to 30 children, the figure Territory Families’ CEO Ken Davies suggests is ideal, workers in Katherine have been managing up to a hundred children each. It’s widely acknowledged that it’s impossible for one worker to engage adequately with that many high-needs families.

Whistleblowers from the department have been feeding stories to the press alleging toxic workplace cultures, unrealistic workloads across the Territory and strong pressure from above to close files without proper investigation.

The worst effects of a continuing culture of abuse and neglect in the Northern Territory’s child-protection system are experienced in Aboriginal communities – as they are around Australia. The press regularly carries stories warning of another Stolen Generation, but the warnings are too late. Aboriginal children account for the entire increase in the national rates of removal over the past decade. In 2014, Andrew Jackomos, Victoria’s first commissioner for Aboriginal children, undertook the massive task of inquiring into the progress and outcomes of all 980 Aboriginal children in out-of-home care in Victoria. By the time he’d finished, 18 months later, Taskforce 1000 was being colloquially referred to as “Taskforce 1600” to reflect the increased number.

The NT department’s failure to protect the two-year-old child from sexual assault in Tennant Creek has had repercussions for other families. As a “consequence of lessons learnt”, Ken Davies told parliamentary estimates in June, an additional 15 children have since been removed in the Barkly region.

But lessons about the consequences of removal are rarely learnt. In Katherine, it’s impossible to avoid the conclusion that child protection – like most agencies of the state – keeps much closer surveillance on poverty-ridden Aboriginal families, and punishes them for not complying with middle-class virtues like keeping a fridge full of food.

Kate is not Aboriginal. “They’re the mums who really need help navigating the system,” she says. “When I was at the crisis centre in Katherine I’d set these ladies from [Aboriginal] communities up with email. I still do, where I’m working now.” Kate learnt that putting things in writing reduced the capacity for Territory Families to twist her words and use them against her. She and her kids at home might be doing well, but she’s still fighting for her older boys who remain in “care” in Darwin. “The department told us last year they’d been diagnosed with FASD,” she says incredulously. (Fetal alcohol spectrum disorder implies she was drinking while she was pregnant.) “I was stone cold sober. I demanded the reports. They’ve flat out refused to give them to me. Now all of a sudden we’re back to the original ADHD and autism diagnoses.”

Kate’s mother abused her. Her domestic partners – though not her current one – viciously assaulted her. The institutions of the state that were supposed to protect her and her children never have. How does anyone function when this is their experience of the world?

“I’m still on the run from DCF,” she says. “I don’t want them to know where I am, or they’ll come sniffing around again.” I remark that she didn’t say she was running from Fred. “Well, it’s DCF that has the power to take my kids for no reason. That’s the scariest thing.” Perhaps the most remarkable decision she made was to seek political asylum from the Territory’s child-protection authorities. Kate no longer has a relationship with the two other boys, but she’s hopeful that Paul, now 16, will be coming home soon.

“The department keeps wanting me to jump through all these hoops”– drug tests, psychometric tests – “but I’m done playing their games. I call myself an educated bogan now,” she tells me. She recently organised victim’s compensation to pay for new teeth. “Now I’m off to a DV seminar in December,” she says. “My boss wants me to speak, all about trauma. I’m done hiding. Now I’m telling my story. If it shows just one person they can fight back against the department, I’ll be happy.”

 

*Names have been changed for legal reasons. Between 2015 and 2017 the author worked as an adviser to Nina Springle MLC, the Victorian Greens spokesperson for child protection and youth justice. The author is not a member of any political party and any views expressed here are his own.

Russell Marks

Russell Marks is a lawyer and an honorary research associate at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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